Filed 12 / 13 /22 Miranda v. Nissan Motor Company CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Cal ifornia Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

KARLA MIRANDA

,
Plaintiff and Appellant

,

v.

NISSAN MOTOR COMPANY

, LTD

. , et al.,

Defendant s and Respondent s

. B 3 16592

Los Angeles County Super. Ct. No. 19STCV02649

APPEAL from a n order of the Superior Court of Los Angeles County, Mark C. Kim , Judge. Affirmed

. Law Offices of Ugo O. Asobie and Ugo O. Asobie for
Plaintiff and Appellant

. SJL Law, Julian Senior; Bowman and Brooke, Mike H. Madokoro and Robert A. Brundage for Defendant and Responden t Nissan Motor Company, Ltd

.

_______________________________________2 INTRODUCTION

Oscar Miranda (Miranda) worked as a truck driver at a facility in Long Beach, California. On December 18, 2018, he was assigned to transport a container that was not properly installed

on his truck

. T o rectify the problem

, Miguel Rodriguez use d a forklift to align the container to the chassis o f the truck but part
of the forklift broke off and struck Miranda or caused him to fall.
Miranda died from his injuries the following day. In addition to suing Rodriguez and other defendants for negligence and premises liability

, plaintiff and appellant Karla Miranda (plaintiff) sued defendant and respondent Nissan Motor Co., Ltd. (Nissan) for product liability

. 1 Plaintiff alleged that Nissan designed, manufactured, or assembled the forklift, or supplied parts to the manufacturer, and the defective forklift was a substantial factor in causing Miranda’s death. The trial court granted Nissan ’s motion to quash service of

summons for lack of personal jurisdiction. Plaintiff appeals, arguing that N issan is subject to specific juri s d ic tion in California because it purposely availed itself of the benefits and protections of the forum. We affirm.

BACKGROUND

I n February 2020 , plaintiff filed an unverified second
amended complaint in the Superior Court of the State of California for the County of Los Angeles. She sued numerous defendants including the owner of the facility where the container was located, the owner of the container, the owner of

1 Plaintiff sued in her individual capacity, as Miranda’s successor in interest, and as guardian of Miranda’s children.3

the defective truck chassis , and the owner and driver of the
forklift , for negligence and premises liability

. She also sued Doe defendants 90 through 100 for product liability. Relevant here, plaintiff alleged Does 90 through 95 “designed, manufactured
and/or assembled the forklift and/or supplied parts to the manufacturer.” She also alleged that a different set of defendants, Does 96 through 100, sold the forklift “to the public and ultimately the final owners of the forklift at the time of the subject incident.” In January 2021, nearly a year after plaintiff filed her operative pleading, she filed a n amendment to the complaint identifying Nissan as Doe defendant No. 93. 2
I n February 2021, Nissan appeared specially and moved to quash service of summons for lack of personal jurisdiction . In support of its motion, Nissan submitted the declarations of its Deputy General Manager ( Jacquelyn Trussell ) and its attorney of record ( Victor Balladares )

. Nissan argued the court does not have general or specific jurisdiction over Nissan. As for specific jurisdiction , Nissan contended that plaintiff ha s not alleged it purposely availed itself of California ’s benefits , plaintiff do es not allege claims arising from Nissan’s contacts with California, and finding personal jurisdiction over Nis san would not comport with traditional notions of fair play and substantial justice. Nissan emphasized that it is a Japanese corporation based in Japan, does no business in California, and has no employees or presence in California. In addition, Nissan doe s not conduct any sales, service, or other business activities in California, nor has Nissan

2 She named a different entity, Nissan Motor Corporation, as Doe defendant No. 94. At plaintiff’s request, that entity was dismissed as a defendant in August 2021.4

directed its efforts or those of its employees for any of these purposes. Further, “the for k lift which is the subject of this
lawsuit was manufacture d in 1986, and [Nissan] did not export the subject forklift to California or the United States.” Although a different entity, Nissan North America, Inc. (NNA), is a California corporation and a wholly owned subsidiary of Nissan, NNA and Nissan are independent and separa te legal entities, NNA is not Nissan’s agent, and Nissan does not exercise any control over the business decisions made by NNA relating to the
distribution and sale of Nissan and Infiniti vehicles in the United
States. Plaintiff requested and received a co ntinuance to conduct jurisdictional discovery. After the continuance, plaintiff submitted a supplemental opposition and additional evidence. Much of it was held inadmissible in rulings plaintiff does not challenge on appeal. The remainder did not include a ny evidence
that N issan ever did any business or directed products into
California. Primarily, p laintiff relied on the declaration of Paul Herbert, a self

- described “trucking and forklift expert. ” Herbert
concluded that the forklift at issue was manufactu red by Nissan

“ for export to the United States and Canada. ” In paragraph 19(e) of his declaration, he also conclud ed that the specific forklift in this case “was exported by Nissan Motor Co Ltd., directly or indirectly , to the United States .” Herbert did not say what he meant by “directly or indirectly.” He also did not claim the forklift was exported to California

. Her bert next opined that in or around 1986, N issan was “marketing, selling, servicing and advertising their forklifts, including forklift model number DF05N70V, in California”

— but5

also that in or around 1986, N issan was “marketing, selling and advertising the ir forklifts, directly or indirectly

, to California
residents.” (Italics added.) The court later found that these two
statements conflicted and the latter statement in paragraph 19(g)

— the one including the words “directly or indirectly”

— controlled.
Herbert did not identify the factual basis for his “directly or indirectly” opinion in paragraph 19 (g). To the extent he relied on

a United States International Trade Commission report for this opinion, the court denied plaintiff’s request for judicial notice of that report

, finding that “ [n] othing in the report discusses California, or discusses how the imports got from [Nissan] to the United States ... or, more specifically, to CA.” And to the extent
He r bert relied on a series of newspaper advertisements and
artic les involving the sale of forklifts, the court also denied plaintiff’s request for judicial notice of those documents. Herbert also opined in paragraph 19(h) that in or around 1986, Nissan was “providing after

- market service, including issuing service and technical bulletins, for their forklifts that were located in California.” The court found this statement to be unsupported by the cited exhibits. Last, Herbert opined in paragraph 19(i) that N issan “fostered ongoing relationships with the residents of Cal ifornia that owned their forklifts by

... supplying their original forklift parts to California residents and issuing service, advisory and technical bulletins, for forklifts that were located in California.”
The court found this statement to be unsupported, and sustained
N issan’s objection. Following a n unreported hearing on August 26, 2021, the court granted the motion to quash

. The court found that plaintiff6

“ failed to show , under the test of J. McIntyre [ v. Machinery, Ltd.

v. Nicastro (2011) 5 64 U.S. 873 (J. McIntyre )]

, that [ Nissan ] is subject to jurisdiction in California. ” 3 The court also found plaintiff failed to show that Nissan “marketed its products in California and/or provided after

- market service for its products in California.” This appeal followed.

DISCUSSION

1. The Appellant’ s Burden on Appeal

The most fundamental rul e of appellate review is that the judgment or order challenged on appeal is presumed to be correct, and “it is the appellant’s burden to affirmatively demonstrate error.” ( People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)

“ ‘All intendments and presum ptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ ” ( Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant has the burden to show error, even if the appellant did not bear the burden in the trial court. ( See
Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 230.) When an opening brief fails to make appropriate references to the record in connection with points urged on appeal, the appellate court ma y treat those points as
waived or forfeited . (See, e.g., Lonely Maiden Productions, LLC v.

3 Th is case held that merely placing a product into the stream of

commerce, even with knowledge that the product might enter the forum state, is not a sufficient basis for personal jurisdiction over a nonresident defendant. ( J. McIntyre

, supra , 564 U.S. 873, 885

– 886 (plur. opn.).)7

GoldenTree Asset Management, LP (2011) 201 Cal.App.4th 368, 384; Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771,

779

– 801 [several contentions on appeal fo rfeited because appellant failed to provide record citation s demonstrating it raised those contentions at trial].) Matters not properly raised or that lack adequate legal discussion will be also deemed forfeited. ( See Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655

– 656.)
A party who contends that a particular finding is not supported by substantial evidence is obligated to set forth in its
brief all the material evidence on the point, not merely the party’s own evidence. ( Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1657

– 1659.) Facts must be presented in the light most favorable to the judgment ( id . at pp. 1657

– 1658), and the burden on appellant to provide a fair summary of the evidence “ ‘ “grows with the complexity of the record. [Citat ion.]” ’ ” (

Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 739 ( Myers ); see Cal. Rules of Court, rule 8.204(a)(1)(C) 4 [briefs must support any reference to a matter in the record with a citation to the record]; rule 8.204(a)(2)(C) [appellant ’s opening brief must “[p]rovide a summary of the significant facts limited to matters in the record”].) The appellant
forfeits or waives a claim of lack of substantial evidence to support a finding by failing to set forth, discuss and analyze all
the evid ence on that point. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [error is deemed to be waived]; Myers,

supra , 178 Cal.App.4th at p. 749 [same].) An appellant has the burden not only to show error but prejudice from that error. (Cal. Const ., art. VI, § 13.) If an

4 All further rule citations are to the California Rules of Court.8

appellant fails to satisfy that burden, his argument will be rejected on appeal. ( Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.) “[W]e cannot presume prejudice and will not reverse the judgment in the absence of an affirmative showing there was a miscarriage of justice. [Citations.] Nor will this court act as counsel for appellant by furnishing a legal argument as to how the trial court’s ruling was prejudicial. [Citations.]” (

Ibid .)

2. Legal Principles and Standard of Review

“ California courts may exercise personal jurisdiction on any basis consistent with the Constitutions of California and the
United States. ” (

Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 268 (

Pavlovich ); Code Civ

. Proc.

, § 410.10.) A state court ’ s assertion of personal jurisdiction over a nonresident defendant
who has not been served with process within the state comports with the requirements of the due process clause of the federal
Constitution if the defendant has such minimum contacts with
the state that the assertion of jurisdiction does not violate
traditional notions of fair play and substantial justice. ( Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444 ( Vons ); Ford Motor Company v. Mon tana Eighth Judicial Dist

. Court (2021) 592 U.S. ___ [ 209 L.Ed.2d 225

, 141 S.Ct. 1017,
1024 ] .)

“ Personal jurisdiction may be either general or specific. ” ( Vons, supra , 14 Cal.4th at p. 445.) Here, plaintiff does not
contend Nissan is subject to general jurisdiction

. We therefore consider only whether Nissan is subject to this California lawsuit based on specific jurisdiction. There are three requirements for
the exercise of specific jurisdiction: (1) the defendant has purposefully availed itself of forum benefits; (2) the controversy is9

related to or arises out of the defendant ’ s contacts with the forum; and (3) the assertion of personal jurisdiction would
comport with fair play and substantial justice. ( Pavlovich, supra , 29 Cal.4th at p. 269.)

“ When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. [Citation.] Once facts showing minimum contacts with the forum

state are esta blished, however, it becomes the defendant ’ s burden to demonstrate that the exercise of jurisdiction would be unreasonable. [Citation.] When there is conflicting evidence, the
trial court ’ s factual determinations are not disturbed on appeal if supported by substantial evidence. [Citation.] When no conflict in
the evidence exists, however, the question of jurisdiction is purely

one of law and the reviewing court engages in an independent
review of the record. [Citation.] ” ( Vons, supra , 14 Cal.4th at p. 449.) Moreover, “ whenever conflicting evidence is presented in affidavits on a motion to quash, it is presumed the trial court resolved such conflicts against the appellant and in support of its
order. ” ( Kroopf v. Guffey (1986) 183 Cal.App.3d 1351, 1359.) “ An unverified complaint has no evidentiary value in meeting the plaintiff ’ s burden of proving minimum contacts. [Citation.] The appellate court generally may not consider evidence not before
the trial court. ” (

DVI, Inc. v. Superior Court (2002) 104 Cal.App.4t h 1080, 1090

– 1091.)

3. Plaintiff’ s appellate briefs are fatally deficient.
We begin with several observations about plaintiff’ s appellate briefs. As just explained, the applicable standard of review requires us to examine the legal basis of the claim at issue, the evidence presented by the moving party, and the10

evidence submitted by the opposing party

, to determine whether
the cou rt erred in granting Nissan’s motion to quash

. But as acknowledged by plaintiff in her reply brief, other than the purposeful availment requirement, she do es not address the two other requirements for exercising specific jurisdiction over a nonresident : wh ether the controversy arises out of Nissan’s contact with the forum and whether the assertion of personal jurisdiction would comport with notions of fair play and substantial justice. Th is omission is fatal. Any claimed error concerning the court’s purpose ful availment determination cannot be prejudicial unless plaintiff also carried her burden of proving all the requirements for establishing specific jurisdiction
over Nissan. (See Pavlovich, supra , 29 Cal.4th at p. 269 [specific jurisdiction requirements]; Century Surety Co. v. Polisso

, supra , 139 Cal.App.4th at p. 963 [prejudice] .) Notably, plaintiff provides no authority to support her position that “there was no need for [plaintiff] to address the related to/arise ou t of, and the fair play/substantial ju stice, elements because the trial court did not base its decision on it.”
N or do es the opening brief include any meaningful
discussion or analysis of the evidence presented by Nissan

, or of the three cases cited by plaintiff to support her claim of error

. Instead, plaintiff asserts

, without providing any context whatsoever, that the evidence relied upon by the court to rule on Nissan’s motion to quash is not in dispute. S he also does not expl ain how the cited cases provide a basis for finding specific jurisdiction over Nissan and reversing the court’s order. (See Howard v. American National Fire Ins. Co. (2010) 187 Cal.App.4th 498, 523 [ “ Conclusory assertions of error are
ineffective in raisin g issues on appeal. ” ] .) In any event, p laintiff is11

mistaken . T he evidence supporting the exercise of specific jurisdiction over Nissan was in dispute. At minimum, Herbert’s
assertion that N issan was marketing, selling

, and advertising its forklifts, directly or indirectly

, to California residents conflicted
with Trussell’s declaration that Nissan does not conduct business in California, does not sell or distribute vehicles or parts in California, and never exported the forklift to Californ ia or the
United States.
T o the extent plaintiff suggests that Nissan conducted business in California indirectly through a third party, Trussell
stated that its California subsidiary, NNA

— the entity responsible for the distribution and sale of vehicles in the United
States

— is not Nissan’s agent and Nissan does not exercise any day

- to

- day control over NNA

. I t is also well

- settled that “ n either ownership nor control of a subsidiary corporation by a foreign parent corporation, without more, subjects the paren t to the jurisdiction of the state where the subsidiary does business.” ( Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 540.) In addition, i t is not enough to mer ely assert that Nissan should be subjected to California’s jurisdiction because Trussell did not say that Nissan was not indirectly marketing, selling

, and advertising its forklifts to California residents. It is plaintiff’s
burden to present evidence and ana lysis supporting her chosen jurisdictional theory. Moreover , as noted, m uch of plaintiff’s
evidence involving Nissan’s purported business activities was held inadmissible or unpersuasive and she does not challenge those rulings on appeal

. And while the cou rt may have found Herbert’s statement in paragraph 19(g) that Nissan indirectly marketed, sold, serviced, or advertised forklifts in California12

through a distributor admissible

, the court did not find that the

statement was true or persua s ive

. Put another way, plaintiff’s contention that the court “accepted” plaintiff’s evidence is undermined by its ultimate finding that she did not show that Nissan is subject to jurisdiction in California. We could conclude our analysis here based upon plaintiff’ s failure to carry her burden on appeal. Instead, we briefly address her contention that the court erred in finding that Nissan did not purposely avail itself of California’s benefits and protections.

4. Plaintiff did not show that Nissan purposely availed
itself of the benefits and protections of this forum.
Although not entirely clear

, plaintiff contends the trial

cour t ha d specific jurisdiction over Nissan b ecause it directed
some unidentified subsidiary or distributor to carry out business
activities in California on Nissan’s behalf

. We are not persuaded.
W hen commercial activities are conducted on behalf of an

out

- of

- state party, “those activities may sometimes be ascribed to the party

, [citation], at least where he is a ‘primary [participant]’ in the enterprise a nd has acted purposefully in directing those activities[.]” (

Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 479, fn. 22.) For example, Empire Steel Corp. v. Superior
Court (1961) 56 Cal.2d 823 held a foreign corporation could be subject to specific ju risdiction in California where the claims asserted arose out of the parent ’ s manipulation of the subsidiary. ( Id. at p. 832.) The court concluded the parent corporation was subject to jurisdiction in California because it “ knowingly caused its California subsidiary to make the contracts in suit ” and
therefore “ engaged in activities creating substantial contacts
withi n California in relation to the claim asserted. ” ( Ibid. )13 Here, there is no such evidence or finding

. 5 In the portion of his declaration relied on by plaintiff, Herbert said Nissan marketed, sold and advertised its forklifts “directly or indirectly”
to Cal ifornia residents. This statement did not compel the court to conclude that Nissan deliberately directed someone else to market, sell or advertise forklifts in California. Saying “indirectly” does not differentiate , for example, between Nissan deliberately directing another entity to market forklifts in California, and Nissan merely selling forklifts to that entity and the entity marketing them in California. The former might be purposeful availment; the latter is not. Put differently, selling a product to another entity, even with knowledge that the entity
will then sell it in California, is not , by itself, purposeful
availment. (See Bombardier Recreational Products Inc. v. Dow
Ch e mical Canada ULC (2013) 216 Cal.App.4th 591, 604 [although the company knew when it contracted to provide fuel
tanks that they would be used in personal watercraft that would
be sold in California

, it would still not provide sufficient
minimum contacts with California ]

. )
To summarize

, Herbert’s conclusory declaration could be
consistent with the possibility of purposeful availment . But it
could also be con sistent with the possibility Nissan merely sold forklifts to a third party with knowledge they might be marketed
or resold in California. And, of course, we defer to the tria l court’s resolution of evidentiary conflicts and express and implied findings

. ( See Kroopf v. Guffey

, supra , 183 Cal.App.3d at p. 1359.)

5 We disregard plaintiff’s citation to evidence submitted by a different party after the court granted Nissan’s motion

.14 For these reasons, plaintiff has not me t her burden of demonstrating that the court erred in granting Nissan’s motion to quash

.

DISPOSITION

The order is affirmed. Defendant and respondent Nissan Motor Co., Ltd. shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.
WE CONCUR:

E DMON

, P. J.

RICHARDSON

, (ANNE K.) J. *

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.